The year 2018 was extraordinary in terms of the number of cases dealing with fundamental civil liberties, the rule of law, and the accountability of the government that made the headlines.
These are the moments when the highest court in the land needs to ensure that justice is done, when the judges entrusted with upholding our Constitution ensure that even those with great power and money cannot subvert the law, where the judiciary ensures it fulfils its function as the third pillar of government, even if that means taking on the executive and the legislature.
Anyone who has followed the Supreme Court this year, however, will realise that this was not how things turned out, barring a few exceptions, and that in fact, the problematic legacies of the court’s judgments and decisions could haunt us for years, maybe even decades to come.
The Good (Albeit Convenient) Verdicts
Now this should not be taken to mean that the Supreme Court failed to deliver justice when it needed to. The Hadiya case (Shafin Jahan vs Union of India), where the judges upheld the right to choose one’s partner, and the Section 377 case (Navtej Johar vs Union of India), where the judges decriminalised consensual same-sex acts, were examples of the court doing what needed to be done and protecting fundamental rights.
But even here, these were examples of situations where no serous opposition existed to the view eventually taken by the courts. In Navtej Johar, the government left the issue entirely to the Supreme Court, which meant that the petitioners, represented by a battery of the finest lawyers in the country, were left facing a rabble of anti-gay rights groups who had no legal grounds and no good advocates.
In Hadiya’s case, the court actually fluffed its lines for months when the government actively opposed what she and her husband had asked for: her freedom from an unlawful house arrest, and the reinstatement of their legal, valid marriage. It was only once every drop of political advantage had been wrung from what (incorrectly) came to be known as the ‘Kerala Love Jihad’ case, and the government’s opposition grew feeble, that the much-lauded judgment came out.
Fortunately, despite the lack of opposition to them, these two judgments still contain some extremely valuable propositions of law.
- Justice DY Chandrachud’s radical conception of anti-discrimination in Navtej Johar could pave the way for truly transformative decisions which protect minorities even from disguised attempts to discriminate against them.
- Then-CJI Dipak Misra’s emphasis on choice and dignity in both cases should prove a bulwark against the State’s intrusion into not just our bedrooms, but perhaps even our kitchens.
- Justice Rohinton Nariman’s judgment in the Section 377 case, by holding that there is no presumption of constitutionality for pre-Constitution laws, should help put our more archaic laws to rest.
It was interesting to see how these judgments utilised some of the landmark 2017 judgments, such as the right to privacy judgment (which contained within it the conception of the right to dignity) and Justice Nariman’s triple talaq judgment on how “manifestly arbitrary” laws violate Article 14 of the Constitution – when making their points. This helped the courts adopt a conception of fundamental rights that was not narrow and constrained, but was more holistic and inclusive.
Gender Justice, But Also of The Convenient Kind
This approach also helped the court deliver other judgments this year which could play a big role in developing gender justice jurisprudence in India. In the span of two days in September, we saw the apex court strike down Section 497 of the IPC (the offence of adultery) and declare that it was unconstitutional for the Sabarimala temple to bar menstruating women from entering it.
The law on adultery was struck down because it was a patriarchal construct that virtually rendered a woman her husband’s property, and denied her the autonomy to make her own decisions. The judges held that this violated the right to dignity and was discriminatory on the basis of sex, and so struck it down, with Justice Misra noting that:
“A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.”CJI Dipak Misra in his judgment in the adultery case
Similarly, the Sabarimala judgment considered the temple’s tradition to be discriminatory, and violative of the fundamental right to freedom of religion in Article 25(1) of the Constitution.
While it was a minority view, Justice Chandrachud’s concurring opinion also included an analysis of how the tradition violated the prohibition of ‘untouchability’ in Article 17 of the Constitution, owing to its emphasis on “purity and pollution”. This was a novel argument raised by the petitioners which was not taken up by the other judges since they felt the other arguments were sufficient, but Justice Chandrachud’s opinion points the way to how other exclusionary concepts can potentially be struck down in the future.
Again, though, these were cases where the opposition in court wasn’t particularly vehement. The Sabarimala issue has, no doubt turned into a flashpoint, but this was mostly whipped up after the judgment – and actually benefitted the ruling dispensation. The failure to ensure enforcement of the judgment is also quite galling, and we are still light years away from a court ruling against something that would face more opposition, like marital rape.
While on the topic of gender, it was good to see that two more women judges were appointed to the Supreme Court this year – Justices Indu Malhotra and Indira Banerjee. However, the gender imbalance among the judges is still stark and in desperate need of rectification.
The Inconvenient Civil Liberties Cases That Disappointed
Unfortunately, the judgments discussed above tell only half the story. In cases relating to civil liberties where the Central government had a bigger stake, the Court’s verdicts played it safer than necessary, and were far from heartening. Some of these related to issues which directly concerned the entire citizenry, while others saw the Court refusing to interfere with blatantly frivolous arrests as not being urgent (for example Abhijit Iyer-Mitra’s arrest in Orissa for jokes about the Konark temple and rasgullas, and of Manipur journalist Kishorechandra Wangkhem for criticising the BJP).
Aadhaar
First, and perhaps the judgment with the furthest-reaching consequences, was the Aadhaar judgment.
The fact that it took so many long years for this case to be heard was itself a travesty, with the main petition filed against the Aadhaar programme as far back as 2012 by retired Justice Puttaswamy. Aadhaar went from being an executive-implemented programme without any checks and balances, to one backed by an Act in 2016 that was railroaded through Parliament on the pretense it was a Money Bill. It had gone from being used for welfare programmes to becoming mandatory to open a bank account, a many-headed Hydra that should never have been allowed to get this far without judicial scrutiny.
And yet the Supreme Court had allowed this to happen, taking it up seriously only in 2015, when it took the Centre’s disingenuous bait and put the whole case on hold till a Constitution Bench could decide whether privacy was a fundamental right or not.
The Constitution Bench was then not constituted for another two years, and after it finally passed its landmark decision, affirming what had already been the position of law for 30 years, failed to hear the challenge to Aadhaar for half a year, despite desperate requests from petitioners and activists. By then Aadhaar’s ubiquity had become a fait accompli, with crores of people willing to just get enrolled to make their lives easier.
After the second-longest hearings in its history, the Court wrapped up arguments in May, and then reserved its verdict for four months. And when it came, the majority judgment was riddled with problems. Aadhaar was to be used only for welfare and subsidy programmes, and yet the judges didn’t overrule a previous ruling allowing mandatory PAN-Aadhaar linking. Which meant that though the judges insisted enrolment was voluntary, anyone paying their taxes had no choice but to enrol.
Concerns over the process of enrolment, and the leakages of data were ignored solely on the basis of government submissions that everything was fine, despite numerous reports to the contrary. Affidavits attesting to the dangers of exclusion from welfare benefits were also considered irrelevant, as the Court allowed Aadhaar to be used for subsidies and welfare. The striking down of provisions allowing it to be made mandatory for private services like mobile numbers and bank accounts was welcome, but this failed to protect the most vulnerable.
The government admitted in court that the rate of Aadhaar authentication failures for government services was extremely high (12%), which means large numbers of those dependent on government benefits would face exclusion for no fault of their own, and the judges still thought it was okay to allow this to continue. They also decided to ignore the government’s dishonest framing of the law as a Money Bill, which should have caused the whole Act to be struck down, which will be viewed by this government, and governments to come, as a form of judicial sanction for this practice when they want to avoid the defeat of a law in the Rajya Sabha.
Activists’ Arrest
The judges had another opportunity to bat for civil liberties in the case challenging the arrest of five activists – Sudha Bharadwaj, Gautam Navlakha, Varavara Rao, Arun Ferreira and Vernon Gonsalves – on 28 August 2018. The arrests, for alleged offences under the IPC and the dreaded UAPA (Unlawful Activities (Prevention) Act 1967), were, ostensibly, a result of police investigations into the Bhima Koregaon violence, but there were serious concerns that these were politically motivated arrests, meant to quash dissent.
The Maharashtra police, who were behind the arrests, consistently leaked information to sympathetic news channels, and held press conferences on the arrests (which followed the arrests of five other activists on similarly flimsy bases a couple of months previously). Moreover, the allegations against the activists were based on undated letters of doubtful authenticity.
However, the Centre and the State governments strongly opposed the petition (originally filed by other prominent members of civil society and later joined by the activists), which had asked for a Special Investigation Team (SIT) to probe the allegations. And the bench, headed by CJI Dipak Misra, refused to intervene, claiming that this was not within the court’s authority.
Justice Chandrachud’s Dissents
That the Supreme Court’s judgments on both Aadhaar and the activists’ arrests were flawed was made clear by the remarkable dissenting judgments written by Justice Chandrachud in both of them. His Aadhaar dissent demonstrated a far better understanding of the technology, including its potential for surveillance and profiling and the risk of exclusion. He also went so far as to call the passing of the Aadhaar Act as a Money Bill as a “fraud on the Constitution.”
In the activists’ arrest case, he found that a SIT was required to conduct the investigation since the Maharashtra police appeared to be biased, and said that the apex court is meant to act as a protector of the fundamental rights of citizens.
“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.”Justice Chandrachud in the Activists’ Arrests case
The Seven Rohingya
Another case where the Supreme Court was supposed to act as a protector of fundamental rights came up after the retirement of CJI Dipak Misra, under the new Chief Justice, Ranjan Gogoi. Seven Rohingya men were deported to Myanmar on 5 October, who had been convicted for illegally entering India back in 2012 – which they had done to escape communal clashes in Kyauk Daw in the Rakhine state, where the Rohingya have been persecuted for decades.
The persecution of the Rohingya has only gotten worse over the last few years, with a UN fact-finding mission reporting that the situation in Myanmar (including the military’s actions) had the hallmarks of genocide, crimes against humanity and war crimes.
Despite this, the Supreme Court agreed to the Centre’s decision to deport the men, largely because of an affidavit filed by the Ministry of Home Affairs in which they claimed that Myanmar had accepted the men as “nationals and citizens”. As is well-known, Myanmar does not in fact recognise the Rohingya as citizens under its 1982 Citizenship Law, something which had also been pointed out to the court in proceedings in this case and another petition on behalf of the Rohingya.
Even the Ministry of External Affairs in their media briefing said that Myanmar had established that they were residents (not citizens). Unsurprisingly, follow-up reports have indicated that the men have not been treated as citizens.
The Court, therefore, allowed itself to be misled by an MHA affidavit which the judges should have known was untrue, and also ignored India’s obligation of ‘non-refoulement’ under customary international law by sending the refugees back to a place where they faced torture and death. Again, this was a matter where the Union Government, whose ministers have been whipping up anti-Rohingya sentiment, had a dog in the fight, and again we got a judgment setting a precedent for future cases dealing with refugees that is alarming to say the least.
NB: For those who might argue that this wasn’t a case of fundamental rights since it involved people who weren’t citizens of India, Article 21’s protection of life and liberty applies to non-citizens as well.
The Inconvenient Rule of Law Cases
This willingness to accept government submissions and decide cases on their basis even where there are arguments and evidence in the public domain to the contrary, was a feature of cases involving allegations of impropriety when it came to the government, where the court needed to carefully consider whether relevant laws and rules had been complied with.
The Rafale Deal
Questionable affidavits and documents were at the heart of the court’s judgment refusing a probe into the Rafale deal. CJI Gogoi and two other judges held that the information submitted by the Centre in a sealed cover was sufficient to show that required procedures had been followed for the deal, and there was no need to look into its pricing or offset contract process.
The decision ignored detailed arguments by Prashant Bhushan, Arun Shourie and Yashwant Sinha on how the procedures had been ignored, and other facts which contradicted the government’s position that were in the public domain.
In what was to become a fiasco that will only be resolved after the court resumes after its winter break on 2 January, the judges noted that the pricing of the deal had been reviewed by the CAG whose report had been submitted to the Public Accounts Committee of Parliament and was in the public domain.
This had not in fact happened, and the Centre submitted an application saying the judges had misinterpreted the grammar of the statement in their confidential note. How the judges arrived at the position they did is a matter of mystery, as even if this misunderstanding had taken place, they should not have accepted this without some proof.
CBI Director Alok Verma
On 23 October, the Centre divested CBI Director Alok Verma of his powers because of his ongoing turf war with Special Director Rakesh Asthana, and all the officers investigating Asthana were transferred immediately by the interim director, with one even being sent to Port Blair.
The message behind these moves was clear, and more importantly, seemed to ignore the special protections for the CBI Director’s post. Verma challenged the action against him on the basis that his tenure of two years is guaranteed and that he cannot be transferred without the previous consent of the special selection committee that appointed him (CJI + PM + Leader of largest Opposition party), which had not happened here.
The issue before the judges was clear on 26 October itself, when it conducted its first hearing: see if Verma could be divested of his powers like this or not.
Instead, CJI Gogoi and his bench agreed to let the divestment stand while the Central Vigilance Commission conducted an inquiry into Verma on allegations of corruption for two weeks, refused to hear the matter when it came up on one day because he didn’t like the way the media was reporting on the case and extended it for weeks despite the fact that Verma is set to retire at the end of January 2019.
After all the delays, the judges finally returned to the same original issue and said the CVC inquiry wasn’t relevant to the same, before reserving their verdict, which still hasn’t come out.
Judge Loya
But perhaps the most disappointing chapter in the Supreme Court’s year was the case dealing with the mysterious death of Judge BH Loya.
Judge Loya had passed away in late 2014, and The Caravan published a detailed investigation into his death in late 2017, which raised serious questions about whether he had actually died of natural causes, or whether foul play was involved. The shockwaves caused by the revelations in their reporting led to petitions being filed in the Supreme Court asking for an independent investigation into the circumstances of his death, which had come while he was hearing the application by Amit Shah to be discharged from the Sohrabuddin Sheikh fake encounter case.
In a widely-criticised judgment written (surprisingly) by Justice Chandrachud, the Supreme Court rejected the requests for an external probe. The judgment once again relied entirely on the statements by four fellow judges (in their personal capacity) who contradicted The Caravan’s version of events, just because they were judges, even though their statements had not been provided on oath.
In doing so, the judgment ignored the discrepancies in the ECG report, hospital bills, guesthouse records and the police report on the death, the lack of an inquest and even contradictions between those four judges’ statements. The judges didn’t ask for the judges’ statements to be taken as affidavits, saying they didn’t need to follow all the regular procedures, and yet rejected requests to cross-examine the judges since this wouldn’t follow regular procedure.
The final decision was conclusive and final, a verdict without a trial, which makes little sense and sets a terrible precedent. On top of this, it was peppered with potshots at the petitioners who had filed the case, accusing them of malafides, even though CJI Misra had expressly said during the hearings that this was not something the judges would be looking at.
Will 2019 Be Any Different?
At some level, the fact that this is how the Supreme Court functioned this year is not much of a surprise.
The Supreme Court has never really taken on the Executive or the Legislature in any meaningful way in all the years of its existence, even when it has passed landmark fundamental rights decisions. Even the great Kesavananda Bharti judgment, which held that Parliament could not alter the Basic Structure of the Constitution, still allowed the amendments to the Constitution that the government was pitching for at the time.
Perhaps the year has seemed more disappointing because of the press conference by the four senior judges in January 2018 which seemed to indicate that the judges would actively fight against Executive interference in the judiciary. While three of those judges have now retired, one of them is now Chief Justice of India. We can only hope that he and the other judges will continue to build on the good work done by the Supreme Court in 2018, and ensure that justice is done even when it isn’t the most convenient.
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